LESLIE HUBBARD and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2009] AATA 363
•19 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 363
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600375 ) No 2007/3716
VETERANS' APPEAL DIVISION ) Re LESLIE HUBBARD Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date19 May 2009
PlaceMelbourne
Decision The Tribunal affirms the decisions under review.
(sgd) Egon Fice
Member
COMPENSATION – brain–stem stroke – high blood pressure – hypertension – injury simpliciter – work stress – arising out of or in the course of employment – diseases – contributed to in a material degree – direct relationship between stress and hypertension – maladaptive coping mechanisms – smoking and alcohol use
Bushell v Repatriation Commission (1992) 175 CLR 408
Comcare v Sahu-Khan (2007) 156 FCR 536
Favelle Mort Limited v Murray (1976) 133 C.L.R. 580
Grant v Repatriation Commission (1999) 57 ALD 1
Kavanagh and The Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Commonwealth Employees’ Compensation Act 1930
Safety, Rehabilitation and Compensation Act 1988, s 4, s 55
Workers Compensation Act 1951, s 7
Workers’ Compensation Act 1926 (N.S.W.)
Stress and cardiovascular disease: a report from the National Heart Foundation of Australia, Stress Working Party - Med J Aust 1988; 148(10): 510-514.
Bunker Stephen J, Colquhoun David M et al, - “Stress" and coronary heart disease: psychosocial risk factors, — Medical J Aust 2003; 178 (6): 272-276
Taber’s Cyclopedic Medical Dictionary
REASONS FOR DECISION
19 May 2009 Mr Egon Fice, Member 1. Mr Leslie Hubbard served in the Royal Australian Air Force (RAAF) between 1960 and 1982. After completing training at the School of Radio, he became a linesman and was responsible for assisting in the maintenance of various communications and antenna installations at a number of RAAF bases in Australia and also in Ubon, Thailand. About one year after his return from Thailand in February 1967, he was diagnosed with pericardial effusion, cardiac tamponade, congested cardiac failure, right pleural effusion and ascites. In early 1968 he had surgery for pericarditis and cardial effusion. He had further surgery in the middle of 1968 when he was diagnosed with non-specific pericarditis, pericardial constriction and recurrent pericardial effusion. By December 1968 it appears that his recovery from pericarditis was complete and he was declared fit for full duties.
2. Mr Hubbard sustained a severe brain-stem stroke in August 2004, which he claimed was brought on by hypertension. In 2005 Mr Hubbard lodged a claim for compensation due to his brain-stem stroke. That claim was rejected by a delegate of the Military Rehabilitation and Compensation Commission (MRCC) on 18 October 2005. In November 2005 Mr Hubbard’s solicitors, relying on a revised medical report from Dr Phillip Jolly, sought reconsideration of the MRCC delegate’s decision. The Director of Appeals for the MRCC, Mr Paul Ontong, subsequently affirmed the original determination of 18 October 2005, thereby disallowing Mr Hubbard’s claim for compensation due to his brain-stem stroke. In his reasons for determination, Mr Ontong said that he was not satisfied that Mr Hubbard’s hypertension was related to his military service. That is the principal claim made by Mr Hubbard which is the subject of this review.
3. Mr Hubbard also lodged a second claim (2007/3716), which arose out of a determination made by the MRCC on 25 September 1991 accepting liability for what was described as high blood pressure. On 9 July 2007 Mr Ontong informed Mr Hubbard that pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), the MRCC determined that the decision made on 21 September 1995 accepting liability for the condition of high blood pressure should be varied to the effect that liability was denied. This was because the MRCC considered high blood pressure and hypertension to be the same condition and that compensation for hypertension had previously been rejected. Liability for Mr Hubbard’s pericarditis and incisional hernia remain unaffected. On 8 August 2007 Mr Hubbard lodged with the Tribunal an application for review of that decision.
4. Sadly, Mr Hubbard died on 27 March 2008, before this hearing could be completed. I did however have the benefit of his evidence which was given by telephone from his hospital bed in August 2007. In accordance with s 55(2) of the SRC Act, Mr Hubbard’s claim remains unaffected by his death as the claim had been served prior to that event. While it was suggested by Mr Lenczner of counsel, who appeared on behalf of the MRCC, that the title to the proceeding should be altered, there is nothing in the SRC Act which suggests that should be the course adopted following the death of a claimant. There can be no doubt that if compensation is payable in respect of Mr Hubbard’s claims, then such compensation would fall into his estate to be dealt with by his legal personal representative.
5. The issues I am required to determine in these matters are:
(a)whether the decision to treat high blood pressure and hypertension as the same condition was correct;
(b)whether Mr Hubbard’s brain-stem stroke arose out of or in the course of his employment;
(c)whether Mr Hubbard’s brain-stem stroke was causally linked to his hypertension;
(d)if the answer to the question in (c) above is affirmative, was Mr Hubbard’s hypertension contributed to in a material degree by his employment with the RAAF, which includes determining:
(i)whether Mr Hubbard suffered serious stress as a result of his service employment when posted to Darwin, following the destruction of that city by cyclone Tracy in December 1974;
(ii)if Mr Hubbard suffered serious stress during his period of service in Darwin, whether that stress directly and materially contributed to the onset of his hypertension; and
(iii)if I were to find that there is no direct relationship between stress and the onset of hypertension, whether Mr Hubbard resorted to maladaptive stress coping techniques, such as excessive drinking of alcohol, smoking tobacco products and eating to excess, which could be said to have arisen out of, or in the course of his employment and caused his hypertension.
EVENTS LEADING UP TO MR HUBBARD’S CLAIMS
6. In order to properly understand Mr Hubbard’s claims, some detail needs to be provided about the course of events which led to Mr Hubbard suffering a brain-stem stroke in August 2004. The events are taken from the materials filed under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and from medical reports admitted into evidence. Save for where mentioned, they are not controversial.
7. After joining the RAAF in 1960 and completing his training as a linesman, Mr Hubbard was posted to Laverton in Victoria and then later to Darwin in 1962/1963. Following that posting, Mr Hubbard returned to Laverton and from there he was apparently sent to RAAF bases all over Australia for the purpose of conducting maintenance work on what are commonly called aerial farms, which house an array of antennae used for military communications. According to Mr Hubbard, his postings throughout Australia prior to 1966 were uneventful.
8. In December 1966 Mr Hubbard was posted to Ubon in Thailand. He returned from Thailand in February 1967 and shortly thereafter, noticed that he had become lethargic and was frequently out of breath.
9. On 17 March 1968 Mr Hubbard was admitted to 6 RAAF Hospital at Laverton in Victoria for tests to determine his medical condition. He was then diagnosed with pericardial effusion, cardiac tamponade, congestive cardiac failure, right plural effusions and ascites. He was treated with medication for relief of symptoms and, after turning a bright green following lymphography, he demanded to be discharged. Mr Hubbard agreed to be re-admitted for further tests after two weeks.
10. On 28 April 1968 Mr Hubbard was admitted to St Vincent’s Hospital in Melbourne for further investigation and treatment of his recurrent pericardial effusion. Three operations were carried out, the first two of those operations, on 30 April 1968 and 8 May 1968, being exploratory. On 18 June 1968 a pericardiectomy was performed for constrictive pericarditis. A medical report from St Vincent’s Hospital records that following his pericardectomy, Mr Hubbard had a slow but steady improvement. At the time of his discharge from St Vincent’s, he was not short of breath and was walking about the ward. The final diagnosis recorded by the assistant cardio-thoracic surgeon, Dr J P Richardson, was that Mr Hubbard suffered from non-specific pericarditis (possibly caused by Coxsackie infection), pericardial constriction and recurrent pericardial effusion.
11. Mr Hubbard was periodically reviewed in the latter half of 1968 and the medical reports record steady progress. His review in September 1968 records that he was very well, with no symptoms; and it was recommended that he return to light duties. The medical report prepared by Wing Commander Clarke, of 6 RAAF Hospital, records that Mr Hubbard’s recovery seemed to be complete and he was considered fit for full duties without restrictions.
12. Nothing remarkable is recorded by Mr Hubbard as far as his employment was concerned until after Cyclone Tracy occurred on Christmas Day 1974 when Darwin was almost entirely levelled. A signal dated 30 November 1975 confirmed that Mr Hubbard was posted to Base Squadron Darwin on a Z-grade posting effective 18 November 1975. Mr Hubbard’s medical records tend to support the fact that he received a temporary posting to Darwin in November 1975. On 15 October 1975 his medical record shows that he had a pre‑Darwin medical check and that he was fit for that posting. His medical records indicate that he was transferred out of RAAF Base Laverton on 18 November 1975. Furthermore, there is an entry on his medical record dated 2 December 1975 indicating Mr Hubbard had been posted in to RAAF Base Darwin.
13. A Z-grade posting is generally a temporary posting and does not entitle the posted airman to removal expenses to, or accommodation for his family at the destination base. A signal dated 10 December 1975 indicates that Mr Hubbard applied to convert his Z-grade posting to an A-grade posting. An A-grade posting generally entitles a member to removal expenses and accommodation either in married quarters or suitable civilian accommodation at or near the base to which he is posted. Mr Hubbard’s family was then residing in married quarters at the Werribee Remote Receiving Station. The signal indicated that Mr Hubbard was aware that there were no married quarters available at Darwin and that no estimate could be given to him when such accommodation would become available. Mr Hubbard’s posting to Darwin was confirmed to be converted to an A-grade posting on 10 December 1975.
14. I should note that Mr Hubbard’s evidence did not entirely accord with the Department of Defence Service Records. Mr Hubbard said in evidence that he was first posted to Darwin in July 1975 on what he described as a quick attachment to start to get things rolling. He said he subsequently moved to Darwin permanently in November 1975. Mr Hubbard’s Department of Defence records do not disclose an attachment to Darwin in July 1975. Nothing turns on this anomaly and it may simply be due to Mr Hubbard’s inaccurate recall which is not unusual for a person who has suffered a stroke.
15. According to Mrs Hubbard, she joined Mr Hubbard in Darwin in January 1976. That is consistent with Mr Hubbard’s Z-grade posting being converted to an A-grade posting in December 1975; and the fact that Mrs Hubbard was required to vacate the married quarters at Werribee Remote Receiving Station by March 1976. According to Mr and Mrs Hubbard, there was no proper accommodation available in Darwin and they were required to live in an old caravan which was parked underneath a damaged house (the houses in Darwin having generally been built on stilts).
16. According to Mrs Hubbard, the caravan contained a double bed and two bunks for their two children as well as a small meal preparation area. There was no hot water available until later in 1976 and there was no washing machine for about 12 months. Electricity was available via a power cord which was run from another house.
17. In his oral evidence, Mr Hubbard said that eventually they moved into a house which had been rebuilt. He said that took about two years. In her oral evidence, Mrs Hubbard said it was about 1978 or 1979 when the house was finally made liveable. She said it wasn’t completely finished. However, in an undated witness statement filed with the Tribunal on 27 July 2008, Mrs Hubbard said that the family moved into a rebuilt house in May or June of 1976 although the house had not been fully rebuilt; it was rotten in places, full of cockroaches, continually flooded in places and smelled awful. She also said that for the whole time that the family was in Darwin, the house was never brought up to an acceptable living standard.
18. Mr Hubbard’s work consisted of rebuilding and maintaining antenna towers situated at an aerial farm a short distance from the RAAF base.
19. In the course of a routine medical examination in February 1977, Mr Hubbard’s blood pressure was found to be significantly elevated. Blood pressure readings were taken on three consecutive days and they varied between 180/100 to 150/90. In a report dated 1 November 1977, Dr P A Rhodes stated that although Mr Hubbard had no other symptoms, his hypertension required treatment, probably with a diuretic and a beta-blocker in the first instance. His condition was not considered to be sufficiently serious so as to bar him from re‑engagement for another term of service with the RAAF.
20. Mr Hubbard re-engaged for another term of five years service with the RAAF in 1977.
21. Mr Hubbard remained in Darwin until 1982, save for one brief attachment to Headquarters Support Command in Melbourne in 1980. He was transferred to Pearce in Western Australia in January 1982 and finally discharged in May 1982. His discharge medical records note that in addition to constrictive pericarditis and hypertension, Mr Hubbard also suffered a ventral hernia at an abdominal scar. It was noted that the scar bulged when external pressure was exerted.
22. After discharge from the RAAF, Mr Hubbard and his family returned to Victoria and he commenced a motor mechanic’s course. However, he did not complete it because of the problems he was having with his hernia. Mr Hubbard’s evidence was that he stayed at home and did the housework while his wife went out to work.
23. On 18 April 1991 Mr Hubbard lodged a claim with the Department of Defence seeking compensation in respect of his pericarditis. It appears that this claim was extended to claim compensation for hypertension, high blood pressure and incisional hernia in July 1991.
24. On 25 September 1991 a delegate of the MRCC informed Mr Hubbard that liability for compensation in respect of his claimed pericarditis, incisional hernia and high blood pressure had been accepted. On the same day, the delegate also informed Mr Hubbard that his claim for compensation for hypertension was rejected.
25. In August 2004 Mr Hubbard suffered a brain-stem stroke. On 1 August 2005 he lodged an application with the Military Compensation and Rehabilitation Service seeking to have liability extended for the brain-stem stroke condition.
26. Mr Hubbard’s claim for compensation regarding his brain-stem stroke was rejected on 18 October 2005. Following reconsideration of that determination, the Military Compensation and Rehabilitation Service affirmed the determination to reject Mr Hubbard’s claim for brain-stem stroke.
27. On 9 July 2007, pursuant s 62 of the SRC Act, the MRCC, on its own motion, reconsidered the determination made on 25 September 1991 which accepted liability for pericarditis, incisional hernia and high blood pressure. The MRCC varied that determination so that liability for the condition described as high blood pressure was denied.
RECONSIDERATION OF ACCEPTANCE OF LIABILITY FOR HIGH BLOOD PRESSURE
28. On 25 September 1991 a delegate of the MRCC made a strange decision. On the one hand, the delegate allowed Mr Hubbard’s compensation claim for high blood pressure and on the other, it rejected his claim for compensation due to hypertension. The decision appeared to be based on a report provided by Dr Robert King on 16 September 1991. In his report, Dr King said that he asked Mr Hubbard about stress and anxiety in relation to his service career. According to Dr King, Mr Hubbard responded that he was usually relaxed and coped quite well with stress although in Darwin in 1975, following the cyclone, he had a high workload and worked for long hours cleaning up as a result of the cyclone. Mr Hubbard said he felt that this was a stressful period. In Dr King’s opinion, Mr Hubbard’s hypertension was not related to his employment with the RAAF. He then said:
It is now accepted that stress may lead to acute elevations in blood pressure, but it is not believed to cause chronic hypertension. In my opinion his hypertension is totally unrelated to his service or his pericardial effusion.
Dr King mentioned that Mr Hubbard’s hypertension was essential hypertension and, as such, was of unknown aetiology. He said that it would be considered to be the natural progression of a pre-existing condition. Dr King was also of the opinion that Mr Hubbard’s hypertension did not restrict his capacity for employment and, hence, the delegate’s decision to reject his claim for hypertension. However, it seems that the delegate nevertheless accepted that Mr Hubbard suffered from an acute elevation in blood pressure, although this is not what Dr King said in his report.
29. Mr Hubbard also obtained a brief report from Dr Anwar Seedat which is dated 14 December 1990. Dr Seedat reported that Mr Hubbard’s hypertension was not due to his pericarditis but he believed it occurred during Mr Hubbard’s service. He was also of the opinion that, having taken a history of stress and anxiety during his years in the service from Mr Hubbard, his service contributed to his hypertension. In a later report dated 19 July 1991, Dr Seedat said it was possible that Mr Hubbard’s hypertension was most likely to arise from stress and anxiety. Dr Seedat made no mention of an acute elevation of blood pressure. In any event, Dr King was clearly of the view that Mr Hubbard’s chronic elevation of blood pressure, or hypertension, did not affect his capacity for employment. Therefore, it follows logically that an acute bout of elevated blood pressure would lead to the same result.
30. According to reports by doctors who examined Mr Hubbard in 1990 and 1991 in respect of his compensation claims, there was no evidence at all of an episode of acute elevated blood pressure resulting in Mr Hubbard’s incapacity for work. For that reason, I find that Mr Ontong was correct when he reconsidered the determination made on 25 September 1991 regarding high blood pressure and decided that compensation for high blood pressure should be denied. I therefore affirm that decision.
BRAINSTEM STROKE – INJURY SIMPLICITER OR DISEASE
31. Insofar as it is relevant to Mr Hubbard’s claim, an injury is defined in s 4 of the SRC Act in the following way:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment;…
32. Disease is defined in s 4 of the SRC Act as follows:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation; …
33. The brain-stem is defined in Taber’s Cyclopedic Medical Dictionary as the stemlike part of the brain that connects the cerebral hemispheres with the spinal cord. It comprises the medulla oblongata, the pons, and the midbrain. A stroke is defined in Taber’s Cyclopedic Medical Dictionary as:
Sudden loss of consciousness followed by paralysis caused by one of several different mechanisms including hemorrhage into brain; formation of an embolus or thrombus that occludes an artery; or rupture of an extracerebral artery causing subarachnoid hemorrhage.
34. The majority of the High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 affirmed the approach taken by the majority of the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310. Mrs Petkoska was employed by Kennedy Cleaning Services and, in 1992 in the course of her employment, she suffered a stroke. The medical evidence was that Mrs Petkoska had moderately severe mitral stenosis as a result of previous exposure to rheumatic fever. This condition of the heart manifests itself with bouts of quivering (fibrillation) that may lead to the release of a clot (embolism) into the bloodstream. According to the medical evidence, a blood clot formed in her heart, broke off, and passed directly to the left region of her brain. This caused the stroke and it was described as due to a cerebral embolus secondary to the valvular heart disease.
35. In Petkoska, Gleeson CJ and Kirby J noted that although there were differences in the approaches adopted by the majority in Zickar’s case, more importantly were the points in common which all members of the majority recognised and emphasised. They continued, at 298:
[35] These included the reminder that a long line of decisions in Australia had recognised that an "injury", being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers' compensation legislation, although the change was internal to the body of the worker. It did not have to be external or necessarily produced by external causes. …
36. In Petkoska, McHugh, Gummow and Hayne JJ referred to the approach adopted by Finn and Merkel JJ in the Federal Court of Australia; namely that the lack of an external cause will not necessarily exclude the disabling event from being characterised correctly as a personal injury for the purposes of s 7 (of the Workers Compensation Act 1951 (ACT)) (ACT Workers Compensation Act). In other words, the circumstance that a sudden physiological change has been caused or provoked by a disease does not prevent it from being properly described as a physical injury. The definitions of injury and disease found in the ACT Workers Compensation Act are not materially different to those set out in the SRC Act.
37. While details regarding the nature of the brain-stem stroke suffered by Mr Hubbard were not before me in evidence, there seemed to be no dispute that Mr Hubbard did suffer a stroke in August 2004. From that description, I take it that what Mr Hubbard suffered involved a sudden, focal interruption of cerebral blood flow, causing a neurologic deficit. Whether that event resulted from thrombosis or an embolism, or a haemorrhage, does not alter the nature of the event. As Finn and Merkel JJ of the Federal Court said in Petkoska’s case, and this was not the subject of argument before the High Court;
… it was not a prerequisite to the finding of an "injury" which is of an internal nature, that a physical event or incident involve a "rupture or breaking", and that an occlusion, causing a disturbance of the normal physiological state, will suffice.
Therefore, whether Mr Hubbard’s stroke was a result of an occlusion or a rupture or breaking, it would properly be described as an injury for the purposes of the ACT Workers Compensation Act. Given that there is no material difference between the ACT Workers Compensation Act and the SRC Act, I find that Mr Hubbard’s stroke is properly described as an injury simpliciter. However, Mr Hubbard’s stroke can only be regarded as an injury under the SRC Act if it arose out of, or in the course of his employment.
38. The problem for Mr Hubbard is that his employment with the RAAF ceased in 1982, some 22 years before he suffered a stroke.
39. Much has been said, in many cases, about the two expressions, arising out of, and arising in the course of, employment. Many of these cases were canvassed in detail in Kavanagh and The Commonwealth (1960) 103 CLR 547, Zickar’s case and Petkoska’s case.
40. In Kavanagh’s case, Dixon CJ referred to the expression arising out of and in the course of employment being replaced in the Commonwealth Employees’ Compensation Act 1930 by changing the expression so that it became disjunctive. He said, at 556:
Whatever language was chosen to institute the contrast the first expression was treated as requiring a causal connexion between the employment or its incidents and the second as requiring that the pursuit of the employment should be an accompanying condition.
41. Dixon CJ formed the view that the words arising in the course of employment did not connote or imply even a slender causal connection with employment. This was supported by Fullagar J who said at 558;
… The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the worker was engaged in his employment or anything incidental to his employment. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connexion could be found between it and the employment. And it necessarily follows, I think, that the words "arising in the course of his employment" ought not to be regarded as meaning anything more or less than "arising while the worker is engaged in his employment".
42. Taylor J canvassed the authorities in detail and said that (at 564):
…by no means all of those who attempted to explain the expression “in the course of the employment” have assigned merely a temporal denotation to it.
He also noted that the general tendency had been to identify the course of the employment with the performance of the duties of the employment or other activities incidental to it. Taylor J concluded that in order to fall within the expression in the course of, it would have to be shown that an applicant sustained his injury in the course of performing the work which he was employed to do or in the course of doing something incidental to that work (at p 568-569).
43. Menzies J was of the view that a review of the cases led to the conclusion that if a worker was injured while doing something incidental to what he was employed to do, that would be sufficient and no other association between the injury and the work was necessary (at p 572).
44. Although the statute which the Kavanagh Court had to construe referred to injury by accident, which expression does not appear in the SRC Act, I am of the view that the analysis of the expressions arising out of, and in the course of is applicable. Mr Hubbard’s stroke occurred 22 years after he had ceased his employment with the RAAF. Even if the expression in the course of is not designed to connote a causal connection, it could nevertheless not be said that at the time Mr Hubbard suffered the stroke, he was doing something which was incidental to his employment. Therefore, I find that Mr Hubbard’s stroke did not arise in the course of his employment with the RAAF.
45. The expression arising out of has been consistently interpreted as pointing to a direct causal connection with the employment. Although it was submitted that Mr Hubbard’s stroke resulted from his hypertension, which in turn was said to be connected to his employment, even if I were to find that was the case, it does not, in my opinion, follow that his stroke arose out of his employment. There cannot be a direct causal connection because the stroke happened some 22 years after Mr Hubbard ceased employment with the RAAF. As I have found that Mr Hubbard’s stroke was an injury simpliciter, it cannot be an injury for the purposes of s 4 of the SRC Act. I find that it did not arise out of, or in the course of Mr Hubbard’s employment with the RAAF. However, that is not the end of the matter because the term injury is defined in the SRC Act to include a disease suffered by an employee. The question which remains is whether Mr Hubbard’s stroke can properly be described as the culmination or climax of a progressive disease, that being hypertension.
DISEASE AND INJURY – MUTUALLY EXCLUSIVE?
46. The question which arises is whether Mr Hubbard having suffered a stroke, which I have found is an injury simpliciter, was nevertheless simply suffering the climax of a disease, namely hypertension, which was contributed to in a material degree by his employment with the RAAF.
47. All of the cases which deal with the distinction between disease and injury have approached the problem in reverse. That is, the arguments have been whether the culmination of a disease, manifesting itself in a sudden and ascertainable physiological change, can be described as an injury for the purposes of the relevant Workers Compensation Act. For example, in Zickar’s case, Mr Zickar collapsed at work when a cerebral aneurism, which was a congenital condition, ruptured. Although Mr Zickar’s aneurism could properly have been described as an autogenous disease, the rupture of the aneurism was claimed to be a personal injury. If there had been no rupture in Mr Zickar’s case, there would have been no event answering the description of personal injury and Mr Zickar would necessarily have been forced to rely on the definition of disease in the NSW Workers’ Compensation Act. Brennan CJ, Dawson and Gaudron JJ accepted that the rupture of Mr Zickar’s aneurism fell within the definition of disease (page 327). Although the NSW Compensation Act expressly stated that an injury included a disease in the circumstances described, and the SRC Act does not expressly do so, I do not see that as being a relevant distinction because the definition of injury means a disease suffered by an employee under the SRC Act.
48. Toohey, McHugh and Gummow JJ said that if Mr Zickar had suffered no rupture, there would be no event answering the description of a personal injury and Mr Zickar would have been driven to rely on the disease provisions in that Act. However, because there was a rupture of Mr Zickar’s aneurism, the presence of an underlying disease did not preclude reliance upon the rupture event as a personal injury (at page 334).
49. Gleeson CJ and Kirby J in Petkoska said, at 300:
… All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word. … If the propounded "injury" is distinct from the underlying pathology that constitutes a "disease" that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met. …
50. McHugh, Gummow and Hayne JJ referred to Kirby J’s decision in Zickar where he said, at 310:
"No longer is there a dichotomy between `personal injury' in its full sense and `disease injury' within the additional part of the definition. A worker is entitled to succeed if he or she can bring a claim within either head of recovery."
They then said:
[73] With respect to the legislation under consideration in this appeal, failure to attract one criterion of liability, by reason of the inapplicability of a deeming provision, should not be treated as having the consequence that the party otherwise rendered liable by the application of the alternative criterion of liability is relieved of that liability.
51. Although disputed, there is evidence before me that Mr Hubbard’s brain-stem stroke was primarily caused by hypertension. Therefore, I am of the view that I must examine the evidence in order to determine whether Mr Hubbard’s ailment, being hypertension, and which culminated in his stroke, was contributed to in a material degree by his employment with the RAAF.
CAUSAL LINK BETWEEN HYPERTENSION AND STROKE
52. Dr Phillip Jolly, a general practitioner with the Mansfield Medical Clinic, in a report dated 28 July 2005 said that Mr Hubbard suffered a brain-stem stroke that was primarily caused by hypertension. Dr Jolly provided a further brief medical report dated 29 August 2006. In that report, he said that it was widely recognised that risk factors which contribute to all strokes are hypertension, raised LDL cholesterol, smoking, a positive family history and diabetes mellitus. Dr Jolly said that Mr Hubbard had long-standing hypertension, type 2 diabetes mellitus and was a long-time ex-smoker. Of these three risk factors, Dr Jolly considered that hypertension was the most important in Mr Hubbard having sustained a stroke.
53. Dr René H Dupuche, a consultant physician, examined Mr Hubbard in October 2006. He provided a report dated 4 November 2006 in which he said Mr Hubbard’s brain-stem infarct was related to arterial changes and atherosclerosis, in which hypertension would have played a major role.
54. Dr Michael O’Rourke provided a written report to the Tribunal dated 21 June 2007. Dr O’Rourke is highly qualified, having worked as a cardiologist at St Vincent’s Hospital since 1970. He has also conducted extensive research into clinical cardiology. He was asked about the significance of Mr Hubbard’s hypertensive condition in the development of, amongst other things, Mr Hubbard’s brain-stem injury. According to Dr O’Rourke, in addition to the factors mentioned by the questioner, age, alcohol abuse and obesity were also significant in the development of hypertension. According to Dr O’Rourke, all of the factors were relevant in the development of the brain-stem stroke.
55. Dr Michael Jelinek, a consultant cardiologist, provided a number of written reports. In his report of 30 October 2006, Dr Jelinek said that Mr Hubbard’s diabetes, high blood pressure, high cholesterol and history of smoking may have had a lot to do with his development of renal impairment and brain-stem stroke.
56. It seems to me that all of the medical practitioners agreed that hypertension was a significant risk factor in the development of stroke. While there is no specific evidence to the effect that Mr Hubbard’s stroke resulted from his hypertension or from any other ailment, relying on the reports of the medical practitioners referred to above, I find that on the balance of probability, Mr Hubbard’s brain-stem stroke resulted, at least in part, from his hypertension.
57. Mr Hubbard initially claimed that his pericarditis and the stress he suffered as a consequence of his work with the RAAF while in Darwin following Cyclone Tracy were responsible for his hypertension. In the course of the hearing, Mr O’Brien of counsel, who appeared on behalf of Mr Hubbard, conceded that on the basis of the medical evidence, it was not possible to establish a link between Mr Hubbard’s pericarditis and his hypertension. In my view, that concession was properly made. Therefore the only remaining issue for me is to determine whether the stress Mr Hubbard claimed he experience while working in Darwin materially contributed to the development of his hypertension. This issue has three elements. The first is whether Mr Hubbard’s work in Darwin resulted in him suffering the claimed stress. The second element is whether, if he did suffer from stress prior to being diagnosed with hypertension in 1977, stress by itself can cause hypertension. The third element, if the answer to the second element is in the negative, is whether the adoption of maladaptive behaviours to cope with stress, such as excessive alcohol consumption, smoking and excessive eating, were responsible for Mr Hubbard’s development of hypertension and those behaviours arose out of his employment.
DID MR HUBBARD SUFFER FROM STRESS BETWEEN NOVEMBER 1975 AND FEBRUARY 1977
58. Mr Hubbard was posted to Darwin on 18 November 1975. A routine medical examination in February 1977 discovered that his blood pressure varied between 180/100 and 150/90. He was diagnosed with hypertension and treatment with a diuretic and a beta-blocker was commenced.
59. Mr Hubbard said in oral evidence that he was first posted to Darwin in July 1975. He said that was a quick attachment to start getting things rolling. Mrs Hubbard agreed with that statement and said that she was aware that while Mr Hubbard was on attachment in July 1975, the workload was extreme and he had no time off. In cross-examination Mrs Hubbard again confirmed that her husband was on attachment to Darwin in July 1975 for a couple of months. After that period of time, she said he returned to Werribee in Victoria, where he remained until he was posted to Darwin, according to Mrs Hubbard, on 12 November 1975.
60. The problem with this evidence is that it is not supported by Mr Hubbard’s personal records produced by the Department of Defence. Although his service records disclose all attachments, there is no mention of Mr Hubbard being attached to Base Squadron Darwin. He was attached to Headquarters Support Command (which is in Melbourne) on 18 March 1974 but that attachment ceased on 22 March 1974. His first posting to Base Squadron Darwin was said to take affect on 18 November 1975 and that is described as a Z-Grade posting. While nothing significant turns on it, given that recollections of events which took place some 33 years ago may not be accurate, I find that Mr Hubbard served in Darwin between 18 November 1975 and 4 January 1982. Therefore, by the time Mr Hubbard arrived in Darwin in November 1975, some 11 months had passed since Cyclone Tracy demolished Darwin.
61. Mr Hubbard claimed that his stress was caused by a combination of difficult and hazardous work, and the very primitive housing conditions in which he was compelled to live.
62. At the time of his posting to Darwin in November 1975, Mr Hubbard held the rank of Sergeant. He described his role as building and maintaining all the antenna towers around the base. He said that he had a couple of troops that worked for him but that he did not have adequate staff. Asked to describe the stress involved in his work he said it resulted mainly from long hours. He said that the antenna towers were at least 100 feet high and they had to be dismantled and rebuilt to get them functioning again.
63. Under cross examination, Mr Hubbard agreed that the work was similar to that which he had previously been doing before his posting to Darwin, although most of the towers in Darwin required replacing. Although Mr Hubbard said that the work was dangerous, working at heights, he agreed that a safety harness was worn. Mr Hubbard said that in addition to the long working days, he was on call 24 hours a day, 7 days a week. Mrs Hubbard said that he was called out frequently outside ordinary working hours. Mr Hubbard said that he worked generally 7 days per week for the first two years while he was in Darwin but then the work slowed down and it reduced to 5 days per week. Mr Hubbard also said that he was not permitted to take any leave during the first two years although his leave had accumulated. After 1977, Mr Hubbard believed that he and his family had two holidays. On the first they went to Adelaide and then Melbourne and on the second to Queensland.
64. Mr Hubbard also said that the accommodation in which he and his family were forced to live added to his stress. When Mr Hubbard’s family moved to Darwin in January 1976, because of the severe damage caused to most houses in Darwin by the cyclone, they were required to live in a caravan. Mr and Mrs Hubbard were aware that no married quarters would be available for them on transfer to Darwin. Mr and Mrs Hubbard together with their two small children lived in a 24-foot long caravan. Mr Hubbard said it was cramped and very hard to get proper rest. The caravan was apparently parked beside a partially demolished house and it was connected to the mains power supply. Mrs Hubbard said that there was no hot water available until 1976 and it was possibly 12 months after their first arrival in Darwin before they were able to have a washing machine. According to Mr Hubbard, it was about two years before the house was rebuilt and became liveable.
65. Although Mrs Hubbard said in her evidence-in-chief on the first occasion that it was about 1978 or 1979 when the house was made liveable, rebuilding was nevertheless incomplete. However, in a witness statement which was provided to the Tribunal in July 2008, she said that they could not move into the house until May or June 1976. It is therefore not clear whether Mr and Mrs Hubbard lived in the caravan until mid-1976 or whether that situation extended to 1978/1979. It is understandable that memory may be inaccurate after the long period of time since the events took place. I do not intend to be critical but merely point out the differences in the admitted evidence.
66. Although I accept that Mr Hubbard worked under considerable pressure during his tour of duty in Darwin, particularly within the first 12 months or 2 years of that tour, there is no single event or series of events given in evidence which would point to Mr Hubbard having suffered a severe psychosocial stressor. I accept that Mr Hubbard was doing difficult work in difficult conditions and that, at least for the first couple of years, the work was quite unrelenting. However, the evidence was that despite the difficulties and poor conditions, Mr Hubbard continued to work in what appeared to be a satisfactory manner. It could not therefore be said that his claimed stress constituted an illness or ailment in itself. As Drummond J said in Comcare v Mooi (1996) 69 FCR 439, when dealing with a compensation claim for mental illness, at 444:
But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition which is outside the boundaries of normal mental functioning and behaviour.
67. There was no evidence Mr Hubbard had any time off work due to stress or that he was treated with any medication. Although it is not essential to Mr Hubbard’s claim that he be able to show the existence of a mental ailment, disorder, defect or morbid condition described as stress, it nevertheless demonstrates that while Mr Hubbard was under considerable pressure, he appeared to cope with it reasonably well. It may of course have been due to maladaptive coping mechanisms, such as smoking, alcohol and increased food intake. I have more to say about that below. For the present purposes, it is sufficient that I find Mr Hubbard’s period of service in Darwin between 1975 and 1977 was reasonably stressful.
WAS STRESS DIRECTLY RESPONSIBLE FOR MR HUBBARD’S HYPERTENSION
68. Much of the debate between the medical experts who gave evidence in this matter was concerned with whether stress, by itself, is a significant contributing factor to the development of hypertension. As far back as the report provided by Dr King in 1991, Mr Hubbard claimed that his hypertension may have been secondary to stress during his service career. Dr King said that while it was accepted that stress may lead to acute elevations in blood pressure, it was not believed to cause chronic hypertension. He was therefore of the opinion that Mr Hubbard’s hypertension was totally unrelated to his work in the RAAF.
69. Dr Jolly was referred to Dr King’s report and he agreed that stress which lasts only a few days or a few weeks is unlikely to cause any long term problems. But if stress is prolonged, such as over a year or two, then Dr Jolly was of the opinion that blood pressure would be higher. Dr Jolly, when first asked for a report in 2006, was asked if there was a connection between Mr Hubbard’s pericarditis and hypertension. In that report, Dr Jolly opined that his pericarditis and subsequent treatment at least contributed to, if not solely caused, Mr Hubbard’s subsequent high blood pressure readings. However, in his oral evidence, Dr Jolly conceded that the cause of hypertension was not really known. Dr Jolly was of the view that hypertension should be viewed as a renal disease and it was therefore likely that Mr Hubbard’s kidneys would have been adversely affected by his pericarditis. He was therefore making the link between renal disease and high blood pressure.
70. In addition, Dr Jolly was of the view that stressful and difficult working conditions in Darwin could have been a significant contributing factor to the development of Mr Hubbard’s hypertension. While accepting that the cause of hypertension was not known, he said that there were factors which made it more likely that a person would become hypertensive. He then again referred to Mr Hubbard’s prolonged illness due to pericarditis coupled with his stressful work environment leading to abnormal blood pressure. Dr Jolly said that no one really knows the cause of hypertension but that medical practitioners look for risk factors. In his opinion, social stress was certainly one of them. He said that people under social stress tend not to look after themselves as well as persons not under stress. I understood that statement to be a reference to maladaptive coping techniques. He agreed that the cause of hypertension remained a fairly contentious issue.
71. In his written report of 4 November 2006, Dr Dupuche said that the relationship between work stress and the development of hypertension had long been a contentious issue but clinical experience would suggest a relationship of significance. Dr Dupuche referred to epidemiological research into the relationship between work hours and hypertension among working people in California. That study showed a positive association between hours worked per week and the likelihood of having self-reported hypertension.
72. Dr Dupuche was also referred to Dr King’s opinion. His initial comment was that Dr King’s opinion was given some 15 or 16 years earlier and the concepts regarding stress and its relationship to a person’s physical integrity had been modified with the passage of time. Regarding whether stress caused chronic hypertension, Dr Dupuche said:
There’s I suppose still some controversy about that point, but there’s certainly plenty of international articles that do make a relationship between chronic stress and the development of chronic hypertension.
Dr Dupuche referred to a further four articles dealing with the relationship between work stress and hypertension, and stress and the link to increased stroke risk. Under cross-examination, Dr Dupuche was referred to articles attached to the statement provided by Professor O’Rourke. Dr Dupuche agreed that his opinion was based on a clinician’s point of view rather than from a review of the literature dealing with hypertension and stress. As a result of the nature of his work, Dr Dupuche agreed that his insight into the causation of hypertension tended to be anecdotal. He was nevertheless of the view that, having seen thousands of people through his clinic who explained their history, there was some validity to the connection.
73. Dr Dupuche was referred to the National Heart Foundation of Australia position statement on stress and coronary heart disease published in the Medical Journal of Australia in March 2003 (“Stress" and coronary heart disease: psychosocial risk factors, Stephen J Bunker, David M Colquhoun et al — Med J Aust 2003; 178 (6): 272-276). Dr Dupuche disagreed with the opinions expressed in that article and noted that it was an article about stress and coronary artery disease, rather than hypertension. Dr Dupuche also pointed out that since 2003 there had been a considerable change in the perceived relationship between stress and a number of diseases. He did not, however, refer to any such studies. Ultimately, Dr Dupuche remained of the view that one could not dismiss the possibility that stress played a part in the development of hypertension.
74. Professor O’Rourke, a cardiologist and vascular physician, gave evidence on behalf of the respondent. He has significant experience as a cardiologist and has conducted research into clinical cardiology, particularly ischaemic heart disease, over a period of some 35 years. Professor O’Rourke was of the view that there was no link between Mr Hubbard’s claimed stress prior to 1977 and the development of his hypertension. In his opinion, the development of hypertension was caused by a gradual increase in arterial pressure in a disposed person. He disagreed with Dr Dupuche that stress led to Mr Hubbard’s hypertension. In fact, Professor O’Rourke pointed out that Mr Hubbard’s blood pressure was on the high side of normal when he first entered military service and gradually increased over time with no relationship to his pericarditis or any other factors. There is objective support for this opinion.
75. Mr Hubbard’s Air Force entry medical examination record discloses a blood pressure reading of 145/80. That was in January 1961 when Mr Hubbard was 17 years of age. Although Dr Dupuche acknowledged this reading was high for a person of that age, he attributed it to the possibility of a young recruit being somewhat excited about the prospect of joining the Air Force. While that might be so in respect of a single reading, the very same blood pressure reading was recorded in his recruit medical examination on 5 September 1960. In January 1966 he recorded blood pressure readings of 150/85 and 140/90. In July and August 1966 his blood pressure was recorded at 135/80. Mr Hubbard began to suffer from symptoms caused by his pericarditis in February 1968 and he was transferred to St Vincent’s Hospital in March 1968. During this period of time, his blood pressure varied between 120/80 to 130/100. His medical records indicate that during his stay at St Vincent’s Hospital he was treated with numerous drugs including diuretics. Therefore, some doubt may be cast on the validity of Mr Hubbard’s blood pressure readings during this period.
76. By November 1968 Mr Hubbard had recovered sufficiently to be regarded as fit for normal service duties as a linesman. It was recommended that he not engage in strenuous physical exertion. His blood pressure on 4 November 1968 was 120/80, which is normal. However, between 1969 and 1973 his medical records disclose readings of 140/80 and 140/90. In August 1973 he was admitted to hospital for dental surgery. During his stay in hospital on 12 and 13 August 1973, Mr Hubbard’s blood pressure varied considerably, ranging between 100/60 and 230/120. However, these extreme readings are probably the consequence of his fasting, medication and surgical procedure, and are therefore unlikely to be indicative of his normal blood pressure levels. On 7 February 1977 Mr Hubbard recorded an initial reading of 180/100 and, after 15 minutes rest, 150/90. On 9 February 1977, he recorded a reading of 155/95. Finally, when undergoing a re-engagement medical in September 1977, Mr Hubbard was diagnosed with hypertension. He recorded blood pressure readings of 170/100 in the sitting position and 160/90 lying down. After 15 minutes rest, he recorded 160/100. Following this examination Mr Hubbard was treated with a diuretic and a beta-blocker.
77. While various explanations have been suggested for the fact that Mr Hubbard’s blood pressure, even at age 17, was on the high side of normal, there is clearly evidence to support what Professor O’Rourke said in his written statement of 21 June 2007. Professor O’Rourke’s opinion was that Mr Hubbard’s blood pressure elevation was progressive, as is the case with essential hypertension. This of course accords with Dr King’s opinion given in 1991.
78. Attached to Professor O’Rourke’s witness statement were a number of articles of which he was the author, and also two articles which set out the National Heart Foundation of Australia’s position regarding stress and cardio‑vascular disease/coronary heart disease. Two of the papers written by Professor O’Rourke deal with the relationship between stress and heart disease, while the third paper deals with the relationship between stress and cardio-vascular disease. Professor O’Rourke’s three papers do not appear to have been published and therefore were probably not subject to peer review. They are in the form of literature reviews. Although Mr O’Brien of counsel, who appeared on behalf of Mr Hubbard, was critical of the fact that Professor O’Rourke’s papers were not directed expressly to the relationship between stress and hypertension, Professor O’Rourke pointed out that most heart disease is caused by arterial disease, and high blood pressure is a manifestation of arterial disease. Therefore, according to Professor O’Rourke, the articles referred to are significant. I accept that explanation.
79. The National Heart Foundation of Australia report published in the Medical Journal of Australia in 1988 addressed cardio-vascular events and predisposing or precipitating factors (Stress and cardiovascular disease: a report from the National Heart Foundation of Australia, Stress Working Party - Med J Aust 1988; 148(10): 510-514). Included in the latter was hypertension, which is regarded as a cardio-vascular risk factor. The working party which prepared the paper addressed key questions such as:
What is stress, and what variables are embraced within its definition?
80. It sought to test the relationship between stress variables and cardio‑vascular conditions or factors leading to cardio-vascular events. The working party concluded that there can be great variations in an individual’s appraisal of a stressor, depending on past experience, personality and the social context in which the stressor occurs. The report noted that most studies into the relationship of stress and cardio-vascular disease are retrospective in that patients with heart disease were sampled alone and were then compared with a matched group of healthy persons. The working group noted that this can invite bias as a result of those involved with illness actively seeking available social or psychological reasons to explain it. It noted that retrospective studies cannot show that the cause preceded the disease because they gather the information on the illness and possible risk factors at the same time. They were treated with caution.
81. Although the working group concluded that prospective studies eliminate the limitations found in retrospective studies, it said prospective studies may nevertheless produce spurious causal associations if potential confounding variables are not assessed initially or are not taken into account during analysis. The working group described life-event stress as encompassing situations which most persons would regard as emotionally stressful to some degree. Included among the examples given was a generally stressful job. The report noted that most studies have methodological problems in the assessment of cumulative life-event stress, and that at the time the report was written, there was little acceptable evidence that related a life-event stress to episodes of ischaemic heart disease or to mortality. The report noted that within occupations, simple measures of work demand, such as the number of hours worked daily, have failed consistently to relate to ischaemic heart disease. The report concluded:
In summary, there is little convincing evidence that occupational characteristics are implicated in the risk of ischaemic heart disease in any simple way. The methodology to include combinations of work characteristics has not been developed sufficiently to complete our understanding of this area. This area of research requires further exploration before it can guide preventative medicine and clinical practice effectively.
82. In his paper on the relationship between stress and heart disease dated December 1990, Professor O’Rourke said that the medical scientific community could not readily explain why atherosclerosis develops slowly over years in the coronary or other arteries, nor exactly how or why plaque fissuring occurs as the primary precipitating event in coronary thrombosis and myocardial infarction. Despite that, Professor O’Rourke said that definite risk factors have been identified and, amongst other things, they include high blood pressure. Professor O’Rourke referred to the National Heart Foundation of Australia Working Party Report 1988, as well as two other studies, and stated that none of the studies pointed to any established correlation between stress and the development of coronary disease, or stress and hypertension, or between stress and any other form of heart disease.
83. With all due respect to Professor O’Rourke, that slightly overstates the position adopted by the National Heart Foundation of Australia in its working party report, which found that there was little convincing evidence that occupational characteristics are implicated in the risk of ischaemic heart disease in any simple way. Its overall assessment was that the body of evidence on the relationship between stress and heart disease was incomplete and inconsistent. Professor O’Rourke did report that regarding hypertension, there are respected authorities who consider that chronic stress may cause elevation of arterial pressure. Nevertheless, Professor O’Rourke was of the opinion that the evidence linking stress with hypertension was not nearly as hard as the evidence linking known risk factors with coronary artery disease, and certainly not conclusive.
84. Professor O’Rourke’s second report on the relationship between stress and heart disease dated December 1991 focused on the interest expressed by the American Heart Association in mental stress as a trigger of cardio-vascular events. After discussing various studies dealing with explanations for prolonged elevation of blood pressure, Professor O’Rourke concluded that while there is suggested evidence that chronic psychological stress may, in particular circumstances in susceptible individuals, contribute to elevation of arterial pressure in the long term, he was not convinced that such stress can cause persistent elevation of pressure, months or years after the original stressor was removed.
85. In his March 1998 report on the relationship between stress and heart disease, Professor O’Rourke looked specifically at reports dealing with the relationship between hypertension and employment. He said that current research suggested that the only plausible association between work and hypertension is in men over 40 years of age with occupational psychological demands and low decision latitude. He noted that even in studies suggesting an association, persons known to be hypertensive were more likely to consider themselves under stress than those who did not.
86. The National Heart Foundation of Australia’s position statement published in the March 2003 (cited in paragraph 73 above) dealt with psychosocial risk factors in stress and coronary heart disease. The expert working group which prepared that paper examined separately variables which are commonly regarded as components of stress, including psychosocial work characteristics. The working group concluded that there was neither strong nor consistent evidence of a causal association between work related stressors and coronary heart disease.
87. Professor O’Rourke was directed to the study relied on by Dr Dupuche dealing with the relationship between work hours and self-reported hypertension among working people in California. Professor O’Rourke did not agree with Mr O’Brien’s suggestion that the survey was definitive regarding the causal connection between stress and hypertension. In his view, the study proposed mechanisms by which long working hours may have an ill-affect on blood pressure. He said that these were just mechanisms that might be involved. Professor O’Rourke was also shown another research paper by Susan Everson, dealing with stress-induced blood pressure reactivity and incident stroke in middle-aged men. Mr O’Brien suggested to Professor O’Rourke that Ms Everson’s report included the relationship between stress and elevated blood pressure. Professor O’Rourke said, quite correctly in my opinion, that the study established new epidemiological evidence of a link, but that it was not a finding regarding the relationship between stress and high blood pressure.
88. Professor O’Rourke also disagreed with Dr Dupuche’s evidence that the concepts regarding stress and its relationship to physical integrity have modified a lot in the past 15 or so years. Professor O’Rourke said that the literature hadn’t changed in that period of time but, nevertheless, there may be substance to the proposed question and the position remained open.
89. Dr Michael Jelinek, a consultant cardiologist, provided three written reports. He examined Mr Hubbard on 26 October 2006. In his first two reports, Dr Jelinek made no reference to any association between stress and the development of hypertension. His comments were restricted to the relationship between Mr Hubbard’s pericarditis and hypertension and his high blood pressure and brain‑stem stroke. In his third report, dated 27 April 2007, Dr Jelinek commented on Dr Dupuche’s opinion that there was a link between Mr Hubbard’s work stress and the development of his hypertension. However, the opinion he offered was in relation to Mr Hubbard having developed hypertension as a result of his work stress history. With all due respect to Dr Jelinek, that is a question for the Tribunal to determine, following the testing of the evidence dealing with Mr Hubbard’s work history and making findings of fact. His expertise should properly have been confined to the relationship, or lack of it, between work stressors and the development of hypertension, having assumed the fact that Mr Hubbard, as claimed, experienced work stress.
90. Dr Jelinek was a member of the working party responsible for producing the National Heart Foundation of Australia position papers published in 1988 and in 2003. In his opinion, the report produced in 2003 was better than the report published in 1988. Essentially, this was because there were major methodological differences in the second approach. What the working group did in the second report, with the benefit of computer searches, was a review of the systematic reviews in order to come to an overall conclusion. He noted that both working parties preferred prospective observational studies as they were the best available to deal with the problem. There were no intervention studies which could be relied upon.
91. Dr Jelinek was referred to the article relied on by Dr Dupuche dealing with working people in California. He was asked if that changed his view about the relationship between the claimed stress and Mr Hubbard’s hypertensive condition. Dr Jelinek said it did not because the Australian Heart Foundation review on stress was based on systematic reviews and not individual papers. He said that while the article was thought-provoking and its conclusions may turn out to be substantiated by a body of evidence in the future, that was not what was considered by the Australian Heart Foundation. He said that he had come across opinions in the other papers over the years which were of interest but were not supported by a consistent body of evidence. He also referred to the bias that might appear where people diagnosed with elevated blood pressure subsequently attribute that to their working environment, that is, the bias inherent in retrospective studies.
92. Dr Jelinek agreed with the proposition stated in the working people in California article that long hours are thought to be linked to hypertension risk. However, as a member of the working group looking into the concept of job strain and the relationship with coronary heart disease, Dr Jelinek said that when all of the studies were put together, the working group believed that it remained a concept which was still work in progress and not proven. He said while it was a good concept and he was sympathetic to it, he did not think that the evidence examined by the working group was conclusive. While it was put to Dr Jelinek that the 2003 Australian National Heart Foundation study questioned the effect of work on coronary disease and not hypertension, Dr Jelinek pointed out that hypertension leads to coronary disease. He said:
My total understanding of this is that there is no doubt that stress aggravates high blood pressure when it exists. It can make it appear, because it was about to appear and the blood pressure may go down when the stressor disappears. But the actual concept that a prolonged period of stress can result in the development of hypertension de novo in someone who would not have got it otherwise, I don’t think – I don’t agree with and I don’t think that Susan Everson or anybody else has yet convinced me that this is the case.
93. Dr Jelinek also addressed a question regarding Mr Hubbard’s blood pressure readings taken when he was a young man, aged 17 or 18 years. While Dr Jelinek referred to the first blood pressure reading (145/80) in 1960 as a one off, he noted that there were four readings, all identical. That, according to Dr Jelinek, put Mr Hubbard on the high side of normal and he believed it indicated Mr Hubbard was genetically affected, in the sense that he was predisposed to developing hypertension.
94. Dr Jelinek was clearly of the view that work stress may aggravate existing hypertension but it did not cause hypertension. He was also of the view that Mr Hubbard was genetically disposed to developing hypertension. He said that there may have been a work aggravation in Mr Hubbard’s case and that it would be very hard to say there wasn’t a work aggravation in the period of time between 1977 and 1982. He said he thought that may have been a contributing factor. Asked whether it played a significant or material part, Dr Jelinek said it’s a small part, that’s what I think. In fact, it may be a small risk and it may be real.
95. The problem for me is that I am required to find, on the balance of probability, whether Mr Hubbard’s hypertension or an aggravation of his hypertension was contributed to in a material degree by his employment. I find that it was not. That is because, although the medical opinions appear to differ markedly, depending on whether they were given in support of the applicant or the respondent, cross‑examination of the medical experts disclosed that there was in fact less difference between them than first appeared. Dr Jolly, who in his report said there was a connection between Mr Hubbard’s pericarditis and hypertension, agreed in oral evidence that the cause of hypertension was not really known. Dr Dupuche said in his report that the relationship between stress and hypertension had long been a contentious issue. He also agreed, because he practised as a clinician, his insight into the cause of hypertension tended to be anecdotal. Of course this approach, as is explained in the Australian Heart Foundation papers, introduces bias because of its retrospective nature.
96. While Professor O’Rourke agreed that there are respected authorities who consider that there is a link between elevated blood pressure and chronic stress, the evidence linking stress with hypertension was certainly not conclusive. He was of the view that the position remained open. Dr Jelinek, who was a member of the working party responsible for the two Australian Heart Foundation papers in evidence, said that the establishment of a link between job strain and coronary heart disease remained a work in progress. Although he was of the opinion that work stress may aggravate existing hypertension, it did not cause it. In my opinion, the evidence discloses that although the medical research to date does not discount a link between work stress and hypertension, the link remains only a possibility and cannot be put any higher. Therefore, I find that Mr Hubbard’s hypertension is not directly linked to the work stress he claimed to have experienced while working in Darwin.
MALADAPTIVE MEANS OF COPING WITH STRESS
97. In his evidence-in-chief Mr Hubbard was asked to explain what he was experiencing and what he was feeling as a consequence of his work and living conditions in Darwin between the end of 1975 and 1977, when he was diagnosed with hypertension. Mr Hubbard said in that period, he was very tired and getting irritated. He said he was drinking more and smoking more. Mrs Hubbard said in evidence that between 1976 and 1977 it was all work for her husband and it was taking its toll on him. She confirmed that he was drinking more and smoking more. Mr Hubbard said that he stopped smoking after 1982, when he left the RAAF. He said that his drinking reduced considerably, to what he described as social drinking, which was nothing like the alcohol he was consuming when he was with the RAAF. Mr Hubbard’s recollection was that his weight between 1975 and 1982 remained fairly constant at or about 90 kilograms.
98. There is a body of opinion in the research literature suggesting that long work hours and stress may increase the risk of development of hypertension through a second pathway. According to the authors of the research paper dealing with working people in California, long work hours are thought to be linked to hypertension by risk-related lifestyles and behaviours, including smoking, unhealthy diet and sedentary lifestyle. Professor O’Rourke, in his report of December 1990, referred to the fact that there is a body of opinion that stress is a factor in cardio‑vascular disease. He referred to one research study but noted that it was not possible to separate the effect of stress itself from the effects this has on eating and smoking habits. Professor O’Rourke said that the person who perceives himself as being under stress is more likely than another to be careless with his diet, and to seek solace in alcohol or cigarettes.
99. In his oral evidence, Professor O’Rourke said that although cigarette smoking was not directly related to hypertension, it was certainly a very powerful risk factor for arterial degeneration and disease. He also said that alcohol is a substantial factor in relation to weight and to risk factors for vascular disease and blood pressure. In his March 1998 report, Professor O’Rourke referred to a study reported in 1997, which involved 654 public servants in the Perth office of the Australian Taxation Office, in relation to work stress, coping strategies and lifestyles. He said the study resulted in no direct association between measures of work stress and blood pressure but that maladaptive strategies in coping with stress were identified as unhealthy dietary and drinking habits, and physical activity. In his examination-in-chief, Professor O’Rourke was asked, given Mr Hubbard’s history which he had seen, was there any other explanation for why he developed hypertension. Professor O’Rourke replied:
Well, I think you have referred him to having an alcohol and smoking habit which was worsening at that time and I think his blood pressure – sorry, his weight also was high at that time. In a place like Darwin I know that there is a lot of drinking and it’s probably easy to become involved in a culture of drinking quite a lot, so I think – that’s why I said I would not see the work by itself as being responsible for those elevations in blood pressure, but it could be that other habits he developed at the time might have.
100. At the conclusion of Professor O’Rourke’s re-examination, I asked him to confirm that his view was that work stresses, by themselves, do not constitute a contributing risk factor to the development of hypertension. Professor O’Rourke responded that if the person is male and aged 40 years or more, and in a position where they were required to do what they were told with no latitude at all, it might be a factor in the development of hypertension. He then said that the form in which stress would probably manifest itself was by the person eating more than he should, smoking more than he should, and what he referred to as people behaving badly. I asked him to confirm that eating to excess, smoking excessively and drinking excessively all contribute to the development of hypertension and his response was yes.
101. In his written report of 27 April 2007, Dr Jelinek said that Mr Hubbard developed diabetes mellitus and was regarded as having a problem with alcohol (I understood that to be an assumed fact on which his opinion was based). He said that it could be said that his alcohol problem was aggravated by work stress. In examination-in-chief, when referred to his written report, Dr Jelinek said that Mr Hubbard had a problem with alcohol which is known to raise blood pressure. He also said Mr Hubbard was working in an environment which is often associated with alcohol excess (again, I take it that this was an assumption on which the opinion was based). Following his re-examination, I asked Dr Jelinek if Mr Hubbard’s consumption of alcohol, smoking and the fact that he appeared to have put on weight may have affected his propensity to progress to hypertension. Dr Jelinek responded that he thought it would accelerate it. He agreed that weight gain in a person pre-disposed to hypertension was a significant factor. In his words: it’s bad to be fat.
102. Despite the evidence and opinions admitted, without objection, about Mr Hubbard’s increased alcohol intake, smoking and possible weight gain, and the admitted expert evidence relating to the links between these maladaptive coping mechanisms and hypertension, when I raised this evidence with Mr Lenczner in the course of final submissions, he said I should disregard that evidence because that was not the way the applicant had run his case. I disagreed with Mr Lenczner, stating that the enquiry conducted by this Tribunal is inquisitorial in a sense and that I could not simply ignore that evidence. As Brennan J said in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425:
… Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. …
103. This issue was also dealt with by the Full Court of the Federal Court in Grant v Repatriation Commission (1999) 57 ALD 1 at 6, where the Court said::
[18] An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15].
104. In Grant’s case the Tribunal dealt with the “case” articulated by the appellant rather than all matters which were relevant to the statute with which it was dealing. Because the Tribunal failed to address a particular issue raised by the evidence before it, the Full Court found that it committed an error of law.
105. The SRC Act provides that where an ailment or aggravation of an ailment was contributed to in a material degree by the employee’s employment thereby satisfying the definition of disease, the disease constitutes an injury for the purposes of the Act. There is nothing in the SRC Act which so much as suggests that the contribution or aggravation must arise directly from the employment. This was made abundantly clear by the High Court of Australia in Favelle Mort Limited v Murray (1976) 133 C.L.R. 580. The court in that case was dealing with the Workers’ Compensation Act 1926 (N.S.W.) where an injury was defined to include a disease contracted by the worker in the course of his employment to which employment was a contributing factor. Mason J said, at 598;
Although par. (a) of the statutory definition now under consideration contemplates a requirement additional to that signified by the words "in the course of", the requirement suggested by the words "to which the employment was a contributing factor" is not as stringent as that suggested by the concept "arising out of" the employment which, as I have said, has been understood to identify something perhaps closer in association than the proximate cause of the injury. The language of the second limb of par. (a) in the statutory definition indicates that all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury.
106. Therefore, I considered that if Mr Hubbard’s resort to maladaptive coping mechanisms was related to his employment, I could not ignore the evidence about his smoking, alcohol consumption and possible weight gain.
107. Unfortunately, the respondent’s representatives disagreed with my view; which caused a number of unnecessarily acrimonious Directions Hearings to be held regarding how the matter should proceed, and the need for the applicant to provide an amended statement of facts and contentions. As I understood (with great difficulty) the submissions made by Mr Lenczner on the first of these Directions Hearings, before Mr Hubbard’s smoking, alcohol consumption and eating to excess become relevant factors for consideration, those activities need to be an illness or disease in themselves. If those activities were merely a mechanism for coping with stress, then they did not constitute a disease process. Therefore, what needed to be established, by evidence, was whether those activities were voluntarily engaged in or whether they could properly be described as an addictive disease process. Mr Lenczner referred me to the Full Court of the Federal Court of Australia decision in Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1 as support for this proposition.
108. Mr Wall suffered a cerebrovascular accident (CVA) and ischaemic heart disease (IHD). He claimed smoking contributed to his medical conditions. The connection between smoking and the CVA and IHD was accepted. Mr Wall claimed that he took up smoking during his period of national service. The Tribunal, at first instance, found that there was a connection between Mr Wall taking up smoking and his military service. The matter then went to a single judge of the Federal Court. Hely J said that the test in that case should be whether the IHD was contributed to by, and the CAV arose out of, Mr Wall’s performance of his duties as a member of the Defence Force. He found that the Tribunal did consider whether there is a causal connection between what it described as Mr Wall’s “military service” and the development of his smoking habit, which in turn led to his disabling conditions. The only issue before the Full Court was whether Hely J properly dealt with the critical question: how was it that performance of Mr Wall’s duties as a member of the Defence Force involve a particular liability to the contraction of a smoking habit. The majority of the Full Court, Wilcox and Downes JJ, in dismissing the appeal said at 8:
The tribunal correctly described its legal function when it said that the “real question … is whether the applicant’s smoking habit can be said to have arisen out of or in the course of his employment … or whether his employment was a contributing factor”. The tribunal also said: “it must be proved that the disease was caused by the employment and not merely contracted during the said employment”. It concluded that: “In this case … to adopt a smoking habit is a risk of that employment”.
109. Although Gyles J dissented, he did not disagree with the majority about the required approach to connecting Mr Wall’s CVA and IHD with his employment. He said, at 9:
It is conceded for the purposes of this appeal that, if there is the relevant causal connection between the respondent’s employment and smoking, then there is the relevant link between employment and the complaints in question which exhibited themselves 33 and 35 years respectively after the respondent’s military service ceased. While that concession removes a large area of potential controversy, it does not mean that smoking is to be regarded as an injury or a disease in any sense in itself. Ischaemic heart disease (IHD) and the cerebrovascular accident (CVA) constitute the compensable conditions. Neither occurred “in the course of employment”, no matter what view is taken of the content of that phrase. It is necessary to establish that the IHD was contributed to by the respondent’s employment and that the CVA arose out of the respondent’s employment. Thus, an actual causal connection is required between that employment and smoking.
110. In my view, this passage from the judgment of Gyles J very clearly explains the way in which Mr Hubbard’s claimed increase in smoking, alcohol consumption and possible excess eating must be dealt with. With respect, Mr Lenczner has not understood what was said by the Full Court in Wall’s case. The compensable condition in this matter is hypertension and, if a causal connection could be established between the claimed coping mechanisms and his employment, subject to the contribution being material, his claim would succeed.
111. Despite expressing my reservations about Mr Lenczner’s approach, in the interests of fairness, I allowed further evidence to be admitted and Mrs Hubbard to be cross-examined in person about her husband’s drinking and smoking during the period between 1976 and 1977.
112. Mr Hubbard provided a further witness statement dated 5 December 2007 regarding his smoking, consumption of alcohol and food. He said that when he first arrived in Darwin in 1975 his average daily consumption of cigarettes was half a packet a day (12-13 cigarettes). He said within a period of approximately 12 months, because of the stress that he was under, his smoking increased to approximately two packets a day. He said that he ceased smoking immediately upon his resignation from the RAAF.
113. Mr Hubbard said he classified himself as a light to moderate drinker on his arrival in Darwin in 1975, drinking about 2 or 3 glasses of beer a day on average. He said that approximately 12 months after arriving in Darwin his average consumption of alcohol increased to about 6 pots per day and considerably more than that on pay days, which were once a fortnight. He said that on pay days he drank to the point of becoming inebriated. He said that after he resigned from the RAAF, he did not consume any beer until about 2003. At that time, he began drinking light beer, somewhere between 2 and 4 stubbies per week. He said he drank wine between 1982 and 1995/1996 on a regular basis, normally about two glasses either before or with dinner in the evening. In 1995/1996 Mr Hubbard said he ceased to consume wine on a regular basis.
114. As far as his eating habits were concerned, Mr Hubbard said to the best of his recollection, his weight did not noticeably increase during his time in Darwin and it remained fairly constant at or about 90 kilograms.
115. Mrs Hubbard also provided a further written statement dated 5 December 2007. In that statement Mrs Hubbard said that she was able to confirm what her husband said in his statement of the same date. She confirmed that Mr Hubbard smoked and drank heavily during his time in Darwin although there was no increase or no noticeable increase in his consumption of food and that his weight did not alter significantly.
116. Mrs Hubbard provided a further undated statement in July 2008. This was provided following the death of her husband. She said that Mr Hubbard’s drinking and smoking increased because of the pressures he was under at work and also the pressure of his rank of Sergeant. She said that as a Sergeant, Mr Hubbard was expected to attend all functions at which cigarettes were free and alcohol very cheap. Although I doubt that this statement is correct, nothing turns on that. She also said that Mr Hubbard was required to go to functions every Friday and on every second Thursday as well as weekends. She said the mess closed at 11.00pm and he would generally be home by that time. She said that Mr Hubbard did not normally become overly inebriated at the functions and that he would always drive home.
117. Mrs Hubbard was asked questions by Dr David S Bell, a psychiatrist engaged by the MRCC. This was done in the course of the hearing so that her answers would form part of the transcript. Dr Bell subsequently provided two reports, the first dated 19 March 2008 and the second 17 November 2008. I have not referred to those reports as they contain nothing which is relevant to my findings on the drinking and smoking issues.
118. Under cross-examination, Mrs Hubbard explained the type of work that her husband was doing while in Darwin. She said that the linesmen repairing the antennae at Darwin worked 24 hours a day because they were on-call and could be called out at any hour. She said that her husband had a few more drinks and was smoking a bit more. She said that instead of one packet a day, it might have been one and a half packets a day and that on Thursdays and Fridays, he would be drinking more. However, having considered this more carefully since she last gave evidence, she said her husband was not in the state where he was completely out of it. She said that was because of being on-call 24 hours a day and that he nevertheless had to work even if he had consumed alcohol. She said:
So the drinking wasn’t as bad as what I think what I think people were trying to make out.
She said that the only time her husband drank too much was on mess nights, when he had to attend the mess for the purpose of a function. She said she didn’t think that Mr Hubbard’s drinking was excessive. Although he sometimes came home slightly inebriated, he was nevertheless able to drive home. Mrs Hubbard also said that because they had a young family, Mr Hubbard did not drink excessively at home. As far as Mr Hubbard’s smoking was concerned, Mrs Hubbard presumed that he’d smoked a packet a day. She did not have a clear recollection and did not know whether he smoked while he was at work.
119. The problem for Mrs Hubbard is that for a connection to be made between her husband’s development of hypertension and his employment, the evidence must disclose, on the balance of probability, that Mr Hubbard’s increased smoking and drinking between the end of 1975 and 1977 in Darwin was contributed to in a material degree by his employment. If the evidence did establish a material contribution, then in my opinion that would satisfy the definition of disease in the SRC Act; as it could be established that Mr Hubbard’s hypertension was contributed to in a material degree by his employment with the RAAF. The definition does not, in my opinion, require a direct contribution by Mr Hubbard’s employment but rather, if his employment created significant stress, and that stress resulted in a material increase in his consumption of alcohol and tobacco products, the link might be established.
120. The definition of disease includes a reference to the aggravation of any ailment where an aggravation of the ailment was contributed to in a material degree by the employee’s employment. However, although the evidence of Professor O’Rourke and Dr Jelinek suggests that Mr Hubbard may have had a predisposition towards developing hypertension, he did not suffer from hypertension until that condition was diagnosed in 1977. Therefore, in my opinion, Mr Hubbard cannot rely on the aggravation provisions in the definition of disease.
121. Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 examined in detail the way in which the expression contributed to in material degree in the SRC Act should be interpreted. He said, at 542-543:
16] Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.
122. The problem in this case is that evidence about Mr Hubbard’s smoking and drinking habits between the end of 1975 and 1977 was scant, and dependent upon memories which are unlikely to be reliable given the time that has elapsed since that time. There is another complication because Mr Hubbard was already a smoker and he drank beer before his posting to Darwin. According to Mr Hubbard’s evidence, his smoking increased from some 12-13 cigarettes a day to two packets per day. On the other hand, Mrs Hubbard said that she thought he smoked about one packet per day. When this is put into the context of Mr Hubbard’s existing smoking habit, that increase in smoking over a period of some 18 months is, in my opinion, unlikely to constitute a material contribution. His increase in smoking might also have been the result of his increased alcohol consumption. However, again, the evidence is that Mr Hubbard was a beer drinker before going to Darwin. While it is entirely possible that his consumption of beer increased while in Darwin, it does not necessarily follow that the increased alcohol intake was contributed to by the stress he said he experienced as a consequence of his employment. The difficulty is, as Professor O’Rourke said in evidence, in a place like Darwin there is a lot of drinking and it is easy to become involved in a culture of drinking in that environment. And, as Mrs Hubbard said, it was extremely hot and humid most of the time in Darwin and therefore people did consume large amounts of liquid, including beer. Also, Mrs Hubbard indicated her husband was regularly on 24 hour call and that he had to limit his alcohol consumption in the event that he was called out to work. It seems to me that in this environment, although I accept that the culture of drinking in Darwin and the fact that he was a member of the Sergeant’s Mess may have resulted in an increased consumption of alcohol, it is not possible to say, on the balance of probability, that there was a material increase in alcohol consumption or that any increase in alcohol consumption was contributed to in a material degree by the stress he felt as a consequence of his employment. Accordingly, I find that Mr Hubbard’s hypertension was not contributed to in a material degree by his employment with the RAAF. In fact, the probable explanation is that Mr Hubbard was genetically predisposed to developing hypertension and the most that can be said about his employment is that it may have accelerated his development of hypertension. Unfortunately for Mrs Hubbard, that does not satisfy the test required by the SRC Act.
CONCLUSION
123. For reasons I have set out above, I have come to the conclusion that the MRCC’s decision on reconsideration of the determination, made on 25 September 1991, regarding Mr Hubbard’s high blood pressure was correct. Therefore, I affirm the MRCC decision, the subject of matter application Nº 2007/3716, made on 9 July 2007.
124. I have also come to the conclusion that Mr Hubbard’s claim for compensation in respect of his brain-stem stroke cannot succeed. That is so whether the stroke is regarded as an injury simpliciter or whether it is properly regarded as the culmination of his diagnosed hypertensive condition. Having carefully examined all of the possible connections between Mr Hubbard’s claimed work stress and the disease, I have concluded that the reconsidered decision made by the MRCC on 15 March 2006, the subject of matter application Nº V 200600375, was correct and I affirm that decision.
I certify that the one hundred and twenty-four (124) preceding paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice, Member
Signed: Dianne Eva
ClerkDates of Hearing 9 & 10 August 2007, 26 & 27 September 2007, 3 October 2008, 2 & 3 April 2009
Date of Decision 19 May 2009
Counsel for the Applicant Michael O'BrienSolicitor for the Applicant Mr Michael Freedman, Human Rights and Civil Law Service, Victoria Legal Aid
Counsel for the Respondent Mr Joe Lenczner
Solicitor for the Respondent Michael La Vista,
Australian Government Solicitor
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